A federal court has issued an interesting ruling after the arrest of various members of the Mongols motorcycle gang: gang members, their family and their associates are enjoined from wearing, licensing, selling or distributing the gang’s logo. It is a novel and questionable order, in my view, by U.S. District Court Judge Florence-Marie Cooper.
Under a 177-page indictment, the government charged 79 Mongols with an assortment of racketeering, murder, attempted murder, drug and money laundering offenses. Raids pulled in gang members in California, Washington and Colorado, among other states. The government used a trademark claim to “seize” the logo and name under forfeiture rules. U.S. Attorney Thomas O’Brien stated “This trademark is subject to forfeiture. If the court grants our request . . . then if any law enforcement officer sees a Mongol wearing his patch, he will be authorized to stop that gang member and literally take the jacket right off his back.”
Cooper’s order is a restriction on speech. Even after a conviction it would be problematic, but before a conviction it is a form of prior restraint. How exactly can she enforce such an order against family and associates? I fail to see the authority of a federal court to order such a restriction on non-parties or even unconvicted defendants.